Fueled by a wave of success that has seen new laws cracking down on the availability and legality of abortions across dozens of states, pro-life conservatives now want to cross a significant threshold in their nationwide crusade: criminalizing miscarriages.
Sparked by big Republican victories in the 2010 elections, conservative lawmakers in state after state have passed tough and in many cases legally questionable laws and regulations targeting the reproductive rights of women and women’s health clinics, making the effort their top legislative priority.
Even with many states still facing high unemployment and the country barely removed from a crippling recession, political allies of the pro-life movement have not wavered from a laser-like focus to severely limit access to abortion services or regulate them out of existence entirely.
Many of the new state-based laws are so unprecedented and restrictive that they appear crafted specifically to challenge Roe v Wade and ignite a national push to outlaw abortion. Civil liberties and women’s rights organizations call the host of state regulations passed by “red states,” from bans on most kinds of abortion procedures to regulatory minutiae designed to shutter clinics, as “excessive and inappropriate.”
But also clear from the refreshed interest shown by conservatives in legislating against a woman’s right to choose is a far broader target. Not confined to the traditionally antagonistic politics of abortion rights, ”Pro-life” lawmakers have gradually turned their attention to all sorts of restrictive laws related to pregnancy and personal family planning.
Contraception has “exploded” as a hot button issue among many conservatives and evangelical groups, with states passing new laws alongside their abortion crackdown and congressional Republicans proposing national bills that would limit access to birth control.
Last year was not a great one for abortion rights. First, congressional Republicans attempted to deny statutory rape victims access to Medicaid-funded abortions (twice). Then GOP-dominated state legislatures pushed record numbers of laws limiting abortion rights, including proposals that could have treated killing abortion providers as “justifiable homicide.”
Yet in the past six months, social conservatives have widened their offensive, and their new target is clear: Not satisfied with making it harder to obtain legal abortions, they want to limit access to birth control, too.
“Contraception is under attack in a way it really wasn’t in the past few years,” says Judy Waxman, the vice president for health and reproductive rights at the National Women’s Law Center. “In 2004, we could not find any group—the National Right to Life Committee, the Bush campaign, anyone—that would go on the record to say they’re opposed to birth control,” adds Elizabeth Shipp, the political director for NARAL Pro-Choice America. “We couldn’t find them in 2006 either, and in 2008 it was just fringe groups. In 2010, 2011, and this year, it’s just exploded.”
Grabbing the most headlines has been anger among evangelicals and conservative lawmakers over the inclusion of birth control coverage in the new “Obamacare” federal health care overhaul. The provision, designed to increase contraceptive access among poor women, generated intense controversy and opposition from churches during last year’s presidential campaign and spilling over into lawsuits seeking to overturn the administration’s policy.
Now anti-abortion activists and elected officials are breaking new ground in a fight that has developed into casting a much larger net than simply abortion rights or access to contraceptives.
A woman in Mississippi was charged by state prosecutors with manslaughter for the “culpable negligence” that the notoriously anti-abortion state claims caused her miscarriage. Brought forward in 2009, the case now stands to be ruled on shortly by the state supreme court.
Using homicide laws against women after they suffer a miscarriage or a stillbirth is “unprecedented” and goes against the intended use of such serious criminal charges. But there have been more than 400 women jailed for losing their unborn babies across the country, according to pro-choice groups, and the treatment of “unintentional pregnancy-loss” as a homicide is increasing in popularity along with the state-based wave of other pregnancy-related restrictions.
Though the specific causes of miscarriage and stillbirth are notoriously hard to determine, Mississippi officials insist that any act that could theoretically “damage” a fetus — is a prosecutable offense. Such a decision is raising fears of copycat laws or prosecutions in other states, especially if they are pitched as means of “protecting” women and their unborn children.
On March 14, 2009, 31 weeks into her pregnancy, Nina Buckhalter gave birth to a stillborn baby girl. She named the child Hayley Jade. Two months later, a grand jury in Lamar County, Mississippi, indicted Buckhalter for manslaughter, claiming that the then-29-year-old woman “did willfully, unlawfully, feloniously, kill Hayley Jade Buckhalter, a human being, by culpable negligence.”
The district attorney argued that methamphetamine detected in Buckhalter’s system caused Hayley Jade’s death. The state Supreme Court, which heard oral arguments on the case on April 2, is expected to rule soon on whether the prosecution can move forward.
If prosecutors prevail in this case, the state would be setting a “dangerous precedent” that “unintentional pregnancy loss can be treated as a form of homicide,” says Farah Diaz-Tello, a staff attorney with National Advocates for Pregnant Women, a nonprofit legal organization that has joined with Robert McDuff, a Mississippi civil rights lawyer, to defend Buckhalter. If Buckhalter’s case goes forward, NAPW fears it could spur a wave of similar prosecutions in Mississippi and other states.
Mississippi’s manslaughter laws were not intended to apply in cases of stillbirths and miscarriages. Four times between 1998 through 2002, Mississippi lawmakers rejected proposals that would have set specific penalties for damaging a fetus by using illegal drugs during pregnancy. But Mississippi prosecutors say that two other state laws allow them to charge Buckhalter. One defines of manslaughter as the “killing of a human being, by the act, procurement, or culpable negligence of another”; another includes “an unborn child at every stage of gestation from conception until live birth” in the state’s definition of human beings.
The cause of any given miscarriage or stillbirth is difficult to determine, and many experts believe there is no conclusive evidence that exposure to drugs in utero can cause a miscarriage or stillbirth. Because of this, prosecuting Buckhalter opens the door to investigating and prosecuting women for any number of other potential causes of a miscarriage or stillbirth, her lawyers argued in a filing to the state Supreme Court—”smoking, drinking alcohol, using drugs, exercising against doctor’s orders, or failing to follow advice regarding conditions such as obesity or hypertension.” Supreme Court Justice Leslie D. King also raised this question in the oral arguments last month: “Doctors say women should avoid herbal tea, things like unpasteurized cheese, lunch meats. Exactly what are the boundaries?”
The case in Mississippi is far from unique. There have already been a handful of instances where lawmakers have sought to criminalize miscarriages and other “unintentional terminations” of a pregnancy.
Most notable is the law proposed by a Republican who is currently his party’s nominee for attorney general in Virginia. Under the bill floated by State Sen. Mark Obenshain, women that failed to report their miscarriage to law enforcement within 24 hours would be charged with a “Class 1 misdemeanor” — a charge that carries up to one year in prison and a stiff fine.
If a woman in Virginia has a miscarriage without a doctor present, they must report it within 24 hours to the police or risk going to jail for a full year. At least, that’s what would have happened if a bill introduced by Virginia state Sen. Mark Obenshain (R) had become law.
And yet, the Virginia Republican Party wants to make Obenshain into the state’s top prosecutor. This weekend, Virginia Republicans selected Obenshain as their nominee to replace tea party stalwart Ken Cuccinelli (R) as the state’s attorney general.
Under Obenshain’s bill, which was introduced in 2009,
“When a fetal death occurs without medical attendance upon the mother at or after the delivery or abortion, the mother or someone acting on her behalf shall, within 24 hours, report the fetal death, location of the remains, and identity of the mother to the local or state police or sheriff’s department of the city or county where the fetal death occurred. No one shall remove, destroy, or otherwise dispose of any remains without the express authorization of law-enforcement officials or the medical examiner. Any person violating the provisions of this subsection shall be guilty of a Class 1 misdemeanor.”
Even more extreme was a law proposed — and quickly abandoned — in 2011 from a Georgia lawmaker that would have treated most miscarriages and stillbirths as a “murderous” felony eligible for the death penalty.